Darley v City of Parramatta

(1) Emails and attachments - documents numbered 1 to 41; and

(2) Microsoft Teams Chat - documents 42 and 43.

1. The respondent identified and excluded a number of duplicate documents from the Schedule of Documents. It also stated that the documents numbered 5.2, 12.1, 15.1, 18.1, 24, 24.1, 25.1, 31.1 and 34.1 in the Schedule of Documents were third-party documents in their entirety. Based on the applicant's advice dated 21 March 2024, it excluded them.
2. The respondent decided to:

(1) Release some of the requested information in full under s 58(1)(a) of the GIPA Act;

(2) Release some of the requested information in part under s 58(1)(a) of the GIPA Act; and

(3) Refuse to provide access to some information on the basis that there was an overriding public interest against its disclosure: s 58(1)(d) of the GIPA Act.

1. The respondent stated that it applied the public interest test, as required by ss 12 to 15 of the GIPA Act. It identified the public interest considerations in favour of disclosure by reference to s 12(1) of the GIPA Act, and it decided that relevant considerations are as follows:

(1) There is a presumption in favour of disclosure of government information: s5 of the GIPA Act;

(2) Disclosure of the information would comply with the object of s 3 of the GIPA Act;

(3) Disclosure of records would enhance Government accountability and transparency and build public confidence in the public sector;

(4) Disclosure of the information could reasonably be expected to ensure effective oversight of the expenditure of public funds; and (5) The information is contained within records that are held by Council that you have requested access to.

1. The respondent identified the public interest considerations against disclosure by reference to s 14 of the GIPA Act, as follows:

(1) Clause 4(c) - Release of some of the information could reasonably be expected to diminish the competitive commercial value of any information to any person; and

(2) Clause 4(d) - Release of some of the information could reasonably be expected to prejudice any person's legitimate business, commercial, professional or financial interests.

1. The respondent decided that most of the disputed information included commercially sensitive material and financial information that is specific to its potential partnership agreement with the Parramatta Eels, and it contains information that is highly sensitive and has commercial value to a third party. The information is not publicly available and it was disclosed to it as part of the proposed sponsorship negotiations. It is information that would impact the Eels' business and financial interests and its release may potentially prejudice future negotiations with other businesses/organisations that the Eels may consider partnering with. It could also prejudice the veracity of the proposed partnership. Therefore, the respondent gave these considerations significant weight.
2. Under s 54 of the GIPA Act, the respondent was required to consult with third parties to obtain their views before releasing their information where it is reasonably practicable to do so, especially if it appears that they may reasonably be expected to have concerns about the disclosure of their business information. However, in view of the applicant's advice dated 21 March 2024, the respondent did not conduct third party consultation.
3. In balancing the public interest, the respondent decided to delete commercially sensitive information of third parties and to release redacted copies of documents, where appropriate. Further, under s 74 of the GIPA Act, irrelevant information (including third party information contained in some of the email chains) was deleted prior to its release to the applicant

All Council documents in TRIM or InfoCouncil that relate to Parramatta Eels, such as the original proposal, updates of the proposal, the final proposal and staff report to the Council meeting on 11 December 2023.

1. On 22 March 2024, the respondent issued a Notice of Decision pursuant to s 60 of the GIPA Act, in which it decided to:

(1) Release some of the requested information in full under s 58(1)(a) of the GIPA Act;

(2) Release some of the requested information in part under s 58(1)(a) of the GIPA Act; and

(3) Refuse to provide access to some information on the basis that there was an overriding public interest against its disclosure: s 58(1)(d) of the GIPA Act.

1. The respondent identified the relevant documents in a Schedule of Documents. It ultimately decided that there is a conclusive presumption that there is an overriding public interest against disclosure of some information pursuant to Sch 1 cl 5 of the GIPA Act. This provides:

It is to be conclusively presumed that there is an overriding public interest against disclosure of information that would be privileged from production in legal proceedings on the ground of client legal privilege (legal professional privilege), unless the person in whose favour the privilege exists has waived the privilege.

1. The respondent identified documents numbered 11, 11.1, 12 and 13 in the Schedule of Documents to as being communications between itself and its solicitors and stated that these contain explicit requests for legal advice. These records were created for the dominant purpose of, or in the course of it obtaining legal advice, and are subject to legal professional privilege. Accordingly, there is a conclusive overriding public interest against their disclosure and it refused access in full.
2. With respect to other documents listed in the Schedule of Documents, the respondent stated that it applied the public interest test as required by the GIPA Act as follows:

(1) It identified the public interest considerations in favour of disclosure as:

(a) The presumption in favour of disclosure of government information: s 5;

(b) Disclosure would comply with the object of the GIPA Act;

(c) Disclosure would enhance government accountability and transparency and build public confidence in the public sector;

(d) Disclosure would assure the public of the effective enforcement of legislation designed, among other things, to protect the public;

(e) Disclosure supports natural justice/procedural fairness; and

(f) The information is contained within records that it holds.

(2) It identified the relevant public interest considerations against disclosure of the disputed information as being cll 4(c) and 4(d) of the Table to s 14(2) of the GIPA Act (see above).

(3) It otherwise repeated its previous comments regarding consultation with third parties and the deletion of irrelevant information.

1. The respondent decided that the weight to be given to the public interest considerations against disclosure of the disputed information outweighed the considerations in favour of its disclosure. Therefore, there was an overriding public interest against disclosure of the disputed information.

1. On 4 April 2024, the applicant lodged the current Application for Administrative Review with the Tribunal, and she alleged that in both decisions, the respondent failed to justify the application of cll 4(c) and 4(d) of the Table to s 14(2) of the GIPA Act.

1. At the first hearing on 31 July 2024, the Tribunal considered a number of procedural issues raised by the applicant: see Darley v City of Parramatta [2024] NSWCATAD 271.
2. The Tribunal remitted the matter to the respondent under s 65(1) of the Administrative Decisions Review Act 1997 (NSW) (the ADR Act) and ordered the respondent to make a fresh decision by 5 September 2024. The matter was then listed for directions on 9 September 2024, with a view to conducting a further hearing.

Decision on remittal - GIPA request no. F024/00524.

1. On 6 September 2025, the respondent made a reconsideration decision, in which it stated that it conducted further searches within InfoCouncil and TRIM to locate the following information which the applicant had requested following the remittal order:

(1) The original unsolicited proposal from the Eels - what was originally requested of Council by the Eels (which should have been loaded into TRIM - and the range of variations of the proposed arrangement throughout 2023). However, on 2 September 2024, she advised the respondent that she had included this category in error as these documents were outside scope.

(2) Risk and merit assessments carried out by Council staff;

(3) Compliance checks of the original proposal against Council policies and subsequent Council staff's recommendations. Alternatively, any staff recommendations;

(4) Compliance opportunity cost assessment of how else the aims and objectives could be achieved against brand, visitation and advocacy goals, such as advertising at CommBank Stadium or sponsoring other sports teams; and

(5) Internal Council correspondence following the meeting with the Eels on 2 May 2023 (as mentioned in the Council report from 11 December 2023 meeting in paragraph 12).

1. The respondent stated that no additional documents within scope were located as a result of these searches.
2. The respondent noted that the applicant had been provided with access to documents numbered 1, 5, 10, 14.1, 14.2 and 16 of the Schedule of Documents for use in her role as a Councillor. It relied upon s 59(1)(d) of the GIPA Act, which provides that an agency can decide that information is already available to an applicant and it has no reason to believe that this information is not already in their possession.
3. The respondent identified the following additional public interest considerations against disclosure:

(1) Clause 1(d) - disclosure of the information could reasonably be expected to prejudice the supply to an agency of confidential information that facilitates the effective exercise of that agency's functions;

(2) Clause 1(e) - disclosure of the information could reasonably be expected to reveal a deliberation or consultation conducted, or an opinion, advice or recommendation given, in such a way as to prejudice the deliberative process of government or an agency; and

(3) Clause 1(g) - disclosure of the information could reasonably be expected to found an action against an agency for breach of confidence or otherwise result in the disclosure of information provided to the agency in confidence.

1. The respondent decided to either refuse access or to provide access to documents numbered 1, 5, 10, 14.1, 14.2, 14.3, 15, 16 and 17 in the Schedule of Documents in a redacted form, on the basis that these contained sensitive information that was received in a closed session of Council. It decided that if information of this nature were available for access under the GIPA Act, it is likely that those wishing to do business with it would be less likely to reveal sensitive, confidential information as it could be released to competitors. It gave significant weight to these considerations. It also stated:

The Council and the Eels have entered into a partnership agreement that contains a range of obligations including obligations on the Council to maintain the confidentiality of certain information that is commercially sensitive. The evidence given by Mr Mikhail makes this plain.

1. The respondent decided to release further parts of documents 3, 4, 7 and 13 (contained in Bundle 3 of the documents lodged with the Tribunal on a confidential basis) and to reconsider the documents contained in Bundle 1 (documents that were previously refused in full), except for documents over which legal professional privilege was claimed.

1. On 9 September 2024, Senior Member Ziegler conducted a further directions hearing. The Senior Member made directions and listed the matter for a further hearing on a date to be fixed by the Registry.

1. On 14 November 2024, the same legal representatives appeared.

1. The respondent relied upon the following evidence:

(1) A letter from the respondent filed on 20 May 2024, together with attachments - marked as MFI-1;

(2) Affidavit of Angela Jones-Blayney dated 14 June 2024 - marked as Exhibit A;

(3) Affidavit of Angela Jones-Blayney dated 4 July 2024 - marked as Exhibit B;

(4) Statement of Roya Eizadi dated 23 July 2024 - marked as Exhibit C;

(5) Affidavit of John Crawford dated 18 June 2024 - marked as Exhibit D;

(6) Affidavit of John Crawford dated 18 June 2024 - marked as Exhibit E;

(7) Affidavit of Sophie Barbera dated 9 October 2024 - marked as Exhibit F;

(8) Affidavit of Andrew Mikhail dated 25 July 2024 - marked as Exhibit H;

(9) Bundle (2 pages) of documents filed on 20 June 2024 - marked as MFI-2;

(10) Bundle of documents filed on 14 August 2024 - marked as MFI-3;

(11) Bundle of documents filed on 14 September 2024 - marked as MFI-4; and

(12) Bundle of documents filed on 14 September 2024 regarding GIPA request F024/00641 - marked as MFI-5.

1. The applicant relied upon the following evidence:

(1) Her Affidavit dated 9 July 2024 - marked as Exhibit 1;

(2) Her Affidavit dated 29 July 2024 - marked as Exhibit 2;

(3) Her first Affidavit dated 7 November 2024 - marked as Ex 3; and

(4) Her second affidavit dated 7 November 2024 - marked as Exhibit 4.

1. The respondent objected to paras 8 to 10 (inclusive) of Ex 3 on grounds of relevance. The Tribunal upheld this objection and paras 8 to 10 (inclusive) and Annexure "A" were deleted.
2. The evidence before the Tribunal is extensive, and while I have carefully considered all of it, I have not extracted the evidence at length in this decision. Rather, I have decided to extract to evidence that I consider to be relevant to the issues that the Tribunal is required to determine in the administrative review.

1. The respondent relied upon written submissions filed on 14 October 2024. It noted that in early 2024, it entered into a three year strategic partnership agreement with the Eels. As a sitting Councillor, the applicant already has some of the information that sought in these GIPA requests, and this information was annexed to her affidavits.
2. The respondent noted that the information sought in the GIPA requests falls within three categories: (1) Confidential commercial information of the Eels; (2) Correspondence between Council staff about the agreement that does not include commercial-in-confidence information of the Eels; and (3) Reports and briefing notes given to Councillors in confidential meetings or briefing sessions.
3. The respondent stated that it is now agreed that category (1) is outside the scope of the GIPA requests. In relation to category (2), on 14 August 2024, it released information in redacted form (deleting emails that were outside of scope, but which were within email chains and contained personal information), because the applicant previously published the information that was released to her on her Facebook page.
4. On 6 September 2024, the respondent made its remittal decisions, and some of the information sought in category (3) was released to the applicant.
5. The respondent identified the following issues for determination by the Tribunal:

(1) Is certain information commercial-in-confidence, or commercial information of the Eels, such that it falls outside the scope of the GIPA requests?

(2) Is some of the information already available to the applicant?

(3) Is some information subject to a conclusive presumption against disclosure because it is subject to legal professional privilege?

(4) Could release of information (that is not commercial information of the Eels) reasonably be expected to:

(a) Prejudice the respondent's ability to exercise its functions?

(b) Diminish the competitive commercial value of the information which is outside of scope?

(c) Prejudice the Eels' legitimate business, commercial, professional or financial interests?

(5) Is that information subject to an overriding public interest against disclosure?

(6) Is certain information subject to copyright such that access should be provided in a way that does not breach copyright?

1. The respondent argued that commercial information includes information that is of commercial value, as: (1) It is valuable for the purposes of carrying on the commercial activity in which the entity is engaged; (2) A genuinely arms-length buyer would be prepared to pay for that information; or (3) It is capable of being described as commercial in character: Australians for Sustainable Development Inc v Barangaroo Delivery Authority [2013] NSWADT 252 at [74].
2. The information that the Eels provided to the respondent, which is within scope, includes the following commercial information: (1) Pricing methodology, strategies, breakdowns and options; (2) Information about how it targets its expenditure in the community; (3) The performance of the Eels' assets in terms of real estate on its jerseys; (4) The Eels' framework for engaging with partners; and (5) The status of its arrangements with other parties.
3. The respondent relied upon evidence of Mr Mikhail (from the Eels) (Ex G). He deposed that none of the disputed information is currently within the public domain and that it was imparted to the respondent in circumstances of confidence and it continues to be the subject of ongoing obligations of confidentiality under cl 7 of the partnership agreement.
4. While the applicant argues that the commerciality of the disputed information and its value is "confined to the numbers", the disputed information includes information that the Eels use to pitch their brand, i.e. how they measure the reach and engagement of the brand and its commercial value. Other competitors would be interested in this information as there is a competitive market for sponsorship funds. If this information is either "commercial information of the Eels" or "commercial-in-confidence evidence of the Eels", it is outside scope.
5. Therefore, it is necessary to consider whether the release of the disputed information could reasonably be expected to: (1) Found an action against it for breach of confidence; and/or (2) Diminish the competitive commercial value of that information; and/or (3) Prejudice the Eels' legitimate business, commercial, professional or financial interests.
6. GIPA request F2024/00523 did not seek correspondence to/from the Eels, and in GIPA request F2024/00641, the applicant stated that she was not after correspondence from the Eels and this information could be redacted. The respondent therefore provided the applicant with emails to the Eels with their employees' names and email addresses redacted.
7. The applicant was provided with access to category (3) documents (numbered 1, 5, 10, 14.1, 14.2, 16 and 17) via the Councillor Portal. These documents remain on the Portal and she continues to have access to them. The respondent argued that s 59(1)(d) of the GIPA Act does not state that information is already available to an applicant only if it is publicly available, and there is no justification for reading the word "publicly" into the provision.
8. In Taylor v Owners - Strata Plan No 11584 (2014) 253 CLR 331, at [38], the High Court stated (citations omitted):

The question whether the court is justified in reading a statutory provision as if it contained additional words or omitted words involves a judgment of matters of degree. That judgment is readily answered in favour of addition or omission in the case of simple, grammatical, drafting errors which if uncorrected would defeat the object of the provision. It is answered against a construction that fills "gaps disclosed in legislation" or makes an insertion which is "too big, or too much at variance with the language in fact used by the legislature".

1. The GIPA Act explicitly recognises that an agency can refuse to deal with a GIPA request where information is available, or might become available, with restrictions. Section 60 empowers an agency to refuse to deal with a request where the information has been subject to a subpoena, or a person is subject to proceedings before the Court and could apply to the Court for that information (whether by subpoena, discovery or otherwise). That is despite any access being subject to the implied undertaking not to use the information for another purpose: Hearne v Street [2008] HCA 36; (2008) 235 CLR 125. The plain words of s 59 are consistent with that.
2. In Commissioner of Police v Danis [2017] NSWCATAP 7, the Appeal Panel stated:

43. Section 60 is clearly designed to give agencies some flexibility in the administration and processing of access-to-information requests. Each of the grounds has at its core the sensible and efficient of deployment of agency resources. Access applicants generally are assisted if agencies are not tied down by voluminous applications (see (a)) or by having to reprocess applications that have already received attention either through previous determinations (the focus of (b) and (b1)) or by other official means (the focus of (d)). An agency may refuse to deal with a request on one of the grounds found in s 60(1)(d), and thereby avoid the need to make a final decision as to the merits of the request. Read together it can be seen that the grounds listed in s 60(1) have as an aim the avoidance of wasteful use of administrative resources (see especially (a)) or situations where the applicant has already obtained a practical result (b), (b1), and, arguably (d)).

44. Provisions like this work to the benefit of access applicants who only have a GIPA Act application as their means of getting access to government information of interest to them. They tend also work to the benefit of first-time or new applicants over repeat applicants.

45. For these reasons, it can be said that the objectives of the GIPA Act are advanced, in particular the object set out at s 3(2)(b):

It is the intention of Parliament:

(b) that the discretions conferred by this Act be exercised, as far as possible, so as to facilitate and encourage, promptly and at the lowest reasonable cost, access to government information.

1. The respondent argued that by occupying the Tribunal with a dispute about information that she already has, the applicant is detracting from the purpose of facilitating access to information by genuine first-time applicants. If her concern is accountability, then as a Councillor she can act in reliance on the documents: (a) She can make a Code of Conduct complaint, or move a motion in the Council for an inquiry or otherwise; and (2) She can use her vote a Councillor. The Tribunal should find that the disputed information is already available to the applicant.
2. The respondent stated that to the extent that information is not already available to the applicant, it is subject to an overriding public interest against disclosure by reason of cll 1(d), 1(f), 4(c) and 4(d) of the Table to s 14(2) of the GIPA Act.
3. The respondent's functions include the provision of goods, services, and facilities, and the carrying out of activities appropriate to the current and future needs of its local community and the wider public: s 24 of the Local Government Act 1993 (NSW) (the LGA). Carrying out its functions depends on the provision of confidential commercial information, and frank and fulsome discussion of it, so that it can make the best decision in the interests of the community. To some extent, redaction of all commercial information of the Eels negates part of that risk, but it still needs to be able to discuss the information internally in order to decide on any prospective contract. This cannot be done without reference to the disputed information and the frank discussion and reporting of this information indirectly discloses it.
4. In general terms, discussion about that material can occur in three or four parts, namely: (1) Internally - between Council officers in fully exploring options and developing recommendation; (2) Briefing of the governing body at a workshop; (3) The provision of those recommendations to a governing body; and (4) The discussion of the information by the governing body itself.
5. Confidentiality enables the respondent to discuss the commercial material of other entities in a frank and fearless manner, particularly when it is considering a contract or tender. If those discussions were disclosed, there is a real likelihood that its officers and staff will be less likely to: (1) engage in full and frank discussions of sensitive material; and (2) record their deliberations for fear that these may be disclosed. This fear also poses a real likelihood that commercial entities will be unwilling to tender or contract with the respondent, or supply it with confidential information for such purposes.
6. The Tribunal does not require direct evidence that this is likely to occur, as the provision is concerned with risk. In Grande v Lismore City Council [1014] NSWCATAD 33, the Tribunal stated:

65. ... if it is established that the information is of a particular character, and that character of information is likely to have the asserted effect: Commissioner of Police, NSW Police Force v Camilleri (GD) [2012] NSWCATAP 259 at [26]; Transport for NSW v Searle [2018] NSWCATAP 93 at [61]. However, this is a granular not a global analysis. It requires consideration of each item of information where the public interest against disclosure is asserted: Destination NSW v Taylor [2019] NSWCATAP 123 at [69].

1. The risk should be self-evident from the nature of the disputed information and Mr Mikhail's evidence is that the risk is even more likely to eventuate if it is disclosed to an applicant who has demonstrated an intention to publish all of the information received in response to her GIPA requests to her Facebook page.
2. To the extent that there are parts of records that do not directly disclose the Eels' information, but discuss it in a more oblique or indirect sense, cll 4(c) and 4(d) of the table to s 14(2) of the GIPA Act apply. This applies to the contents of the sponsorship packages and, while the offered options are outside of scope, releasing information that discusses them would reveal indirectly what the Eels offered and/or what it was prepared to offer. That risks the respondent breaching the confidentiality obligations under the partnership agreement with the Eels. In an ultra-competitive market, there is a real likelihood that this would diminish the commercial value of the Eels' sponsorship options and prejudice their interests in the market. This is the evidence of Mr Mikhail.
3. The Tribunal has previously recognised that: (1) information of this type has commercial value; (2) its value could be destroyed or diminished if disclosure would give a competitor an insight into the business of the documents' owner; and (3) its release would prejudice the owner's legitimate business, commercial and financial interest: see Meriton Property Services Pty Limited & Ors v UrbanGrowth NSW [2017] NSWCATAD 71, and the authorities referred to therein.
4. In relation to documents numbered 11, 11.1, 12 and 13 in GIPA request F024/00641, there is a conclusive presumption that there is an overriding public interest against disclosure because the information is subject to legal professional privilege: Sch 1 cl 5 of the GIPA Act.
5. Section 118 of the Evidence Act 1995 (NSW) provides:

Legal advice

Evidence is not to be adduced if, on objection by a client, the court finds that adducing the evidence would result in disclosure of -

(a) a confidential communication made between the client and a lawyer, or

(b) a confidential communication made between 2 or more lawyers acting for the client, or

(c) the contents of a confidential document (whether delivered or not) prepared by the client, lawyer or another person,

for the dominant purpose of the lawyer, or one or more of the lawyers, providing legal advice to the client.

1. Privilege may apply to a copy of a non-privileged document, where the copy was made for the dominant purpose of obtaining legal advice: Commissioner of Australian Federal Police v Propend Finance Ltd (1009) 188 CLR 501.
2. In this matter, the disputed documents are correspondence between the respondent and its solicitors and they were clearly created for the purposes of the respondent obtaining legal advice. It has not waived that privilege.
3. Therefore, the respondent argued that the Tribunal should affirm the decisions under review.

1. Ms Barbera, Records Information Officer, affirmed an Affidavit on 9 October 2024 (Ex F). She stated that her duties include processing GIPA requests and she assisted the legal team in conducting searches in response to the applicant's GIPA requests. She concluded:

17. Initially I had not excluded documents that required third party consultation, and so the further searches based on the 641 original search scope and the 523 original search scope, produced several documents covering complaints to the city about funding the Eels that were received from members of the public. Apart from those documents, which were then excluded, the documents located by me were duplicates of documents already listed in the Schedule of Documents to the 523 decision or in the schedule of documents to the 614 decision, and so were not new documents requiring disclosure to Councillor Darley.

1. The applicant required Ms Barbera to attend for the purposes of cross-examination. She was called and affirmed, after which Mr Ryan questioned her briefly about her level of access to the respondent's databases. She was then excused from the proceedings.

1. Ms Jones-Blayney, Executive Director City Engagement and Experience, affirmed two affidavits (Ex A and Ex B). She deposed that she has held her current position since August 2023 and her roles and functions include oversight of marketing, events and communications, including partnerships and sponsorships.
2. Ms Jones-Blayney stated that the respondent's Community Strategic Plan for the period 2018 to 2038 identifies the importance of forging and maintaining strong partnerships to deliver the goals of the Strategic Plan. This identifies that as the respondent continues to grow, government, businesses and the community need to work together to invest in the collective wellbeing. These partnerships take shape as formal and informal arrangements, enabling the respondent and its partners to add value through aligned vision, shared resources, networks and knowledge and collective actions. Partnerships and sponsorships are an important strategy for the respondent as it contributes to the development of the City by enhancing and assists in the delivery of its high quality annual events and festivals program, as well as its offering of services, activities and projects for the community. It works within its Productive Partnerships Policy and its Sponsorship Policy to determine whether a potential partner or potential entity to sponsor falls within the policy criteria and provides the benefits it seeks from such an arrangement. It is currently reviewing and updating the policies in line with its resolution from the meeting on 25 March 2024.
3. Ms Jones-Blayney stated that the respondent has been and continues to be involved in a range of partnerships, including partnerships with commercial entities, cultural, artistic and sporting organisations. It is currently considering new or renewing commercial partnerships with about 13 entities, including sporting, cultural entitles or universities. Annexure "A" to Ex A comprises attachments 1 and 2 to the Report to Council dated 25 March 2024 in relation to Strategic Memberships, Event Sponsorships and Partnerships, including the Partnerships that are currently under consideration by the respondent.
4. Ms Jones-Blayney stated that in order to assess the potential benefits and negotiate appropriate terms of any such agreement, it is necessary to carefully consider the offering of the potential partner that will often involve the exchange of information that is of an intellectual and/or commercial value and confidential. Information considered will relate to: (1) pricing including the value of the offerings to the respondent; (2) investment, especially where it relates to community related activities; (3) performance of products and services offered that is relevant to the value attributed to the product or service; and (4) the community benefit arising from the proposal and return (financial and non-financial) on investment. The respondent and the Eels began discussing a potential partnership in late 2022 and some of her staff were directly involved in the discussions and negotiations. Her role was to oversee the negotiations.
5. Discussions between the Lord Mayors and the respondent's staff and the Eels continued throughout 2023, to establish common objectives and goals to achieve the vision for the City and the community, and a final package of partnership options was submitted by the Eels in November 2023. The respondent was requested to determine its position by the end of 2023.
6. On 29 November 2023, the partnership options were presented at a 2.5 hour Councillor Workshop, which was attended by the Eels executive team and Council staff. Commercial in confidence information was presented by the Eels and discussed during this workshop. The material submitted to the Councillors included a slide deck that was marked "Commercial in Confidence for the information of Councillors". The Briefing Note was produced at page 8 of the 641 Bundle along with the outcomes of the workshop (at page 10). The slide deck (at page 28 of the 614 bundle) sets out the presentation provided to the Councillors at the workshop and this describes the partnership offering of the Eels.
7. After a positive reception of the proposal, Councillors were advised that the respondent's officers would submit a Late Report to the meeting of Councillors on 11 December 2024, to allow consideration and determination of its position on the partnership proposal before the end of 2023.
8. The Late Report was circulated to the Councillors on 8 December 2023 and it was marked as confidential due to the information contained within it: s 10A(2) of the Local Government Act. The respondent stated, relevantly:

This report is confidential in accordance with section 10A (2) (c) of the Local Government Act 1993 as the report contains information that would, if disclosed, confer a commercial advantage on a person with whom the Council is conducting (or proposes to conduct) business; and section 10A (2) (d) of the Local Government Act 1993 as the report contains commercial information of a confidential nature that would, if disclosed, (i) prejudice the commercial position of the person who supplied it; or (ii) confer a commercial advantage on a competitor of the Council; or (iii) reveal a trade secret.

1. At a closed meeting on 11 December 2023, the respondent resolved to enter into a three-year strategic partnership, with the Eels with funding for 2024 and it deferred a decision about expenditure for 2025 and 2026.
2. On 29 January 2024, the respondent held a further Councillor Workshop to consider the proposal, in particular the expenditure commitment for 2025 and 2026. An Extraordinary meeting of the Council followed that Workshop and this was also a closed session. The respondent passed a resolution that: (1) reaffirmed its resolution dated 11 December 2023 and its financial commitment to the Eels for 2024; (2) the respondent endorsed its partnership and expenditure for the 2025 and 2026 years; (3) the Chief Executive Officer is to allocate funding from its General Reserve to cover the cost of the three year partnership; and (4) it delegates authority to the CEO to finalise and execute all necessary documentation.
3. Ms Jones-Blayney deposed at some length to the importance of closed Council sessions and that Local Government has a well-established practice of considering commercial tenders, contracts and agreements in closed session in order to protect external entities' commercial secrets. She stated that if such information was available to any commercial competitor or member of the public seeking access to it by way of a GIPA request, the protections afforded by the closure of the Council meetings under s 10A of the LGA would be significantly diminished and the respondent and its staff and Councillors would not be able to table, consider and document its consideration of any commercial information for fear that the confidential information would be disclosed. This would adversely affect its conduct of meetings and its staff and Councillors would not be able to consider such information in a manner that would protect the confidentiality of the information.
4. Ms Jones-Blayney gave evidence in support of the assertion that cll 4(c) and 4(d) of the table to s 14(2) of the GIPA Act apply to the disputed information. She concluded that the respondent has kept the community informed about the partnership with the Eels by publishing its resolutions, fact sheets and media releases that explain how the partnership with benefit the community. Annexure B to her affidavit comprises copies of media releases and fact sheers published by the respondent following its resolutions in December 2023 and January 2024.
5. In Ex B, Ms Jones-Blayney responded to the applicant's affidavit (Ex 1). She stated that contrary to the applicant's evidence, at no time during the meeting on 11 December 2023 did the respondent endorse expenditure of up to $2.4M. The respondent adopted funding Option A and this is reflected in the minutes. The sum for year one was discussed several times in closed session before the Councillors voted on 11 December 2023. Its commitment was recorded in the publicly released minutes of the meeting which the applicant attended and the minutes indicated that she voted against the Motion. She also disputed the applicant's assertion that the outcome of the 29 January 2024 meeting incorrectly records the amount committed to at the previous meeting.
6. Ms Jones-Blayney noted that the applicant stated that her appeal to this Tribunal "_is mainly driven by the principle that Council at all times needs to act as transparently as possible, as well as the troubling precent I currently see through the withholding of information from the public and decision making unnecessarily occurring behi_nd closed doors". However, the respondent, like many other Councils, utilises the closed session provisions of the LGA where it is necessary to have a full and frank discussion about matters that are commercially sensitive and these provisions are used when appropriate.
7. The Eels entered into negotiations with the respondent on the basis that their information would be kept confidential, unless otherwise agreed. The Eels were concerned that if the partnership did not proceed, its sensitive commercial information would have been published and thereby placing them at a disadvantage in other commercial partnership negotiations that were currently underway. To allow this information to be disclosed to the public would adversely effect the business interests of both the Eels and the respondent.
8. Ms Joney-Blayney also referred to the applicant's evidence that there as "considerable community anger, outrage and community backlash" as a result of the decision to enter into the partnership with the Eels. However, I have not extracted this evidence in this decision as I do not consider it to be relevant to the issues to be determined in these proceedings.
9. Ms Jones-Blayney also disputed the applicant's suggestion, at para 15 of Ex 1, that the respondent "re-engineered the reasons for entering into the agreement and making it into a partnership". I have not extracted that evidence as I consider that it is not relevant to the issues to be determined in these proceedings.
10. Ms Jones-Blayney also took issue with the applicant's apparent complaint (at para 29 of Ex 1), that the respondent's consideration of the Sydney Festival partnership took place in an open session. However, she stated that Sydney Festival did not request that its information remain confidential and therefore a closed session was not held.
11. The applicant required Ms Jones-Blayney to attend for cross-examination and she was called and sworn. Mr Ryan then questioned her concerning her role with the respondent, her responsibilities, and he then sought to question her regarding the decision to hold closed Council briefing sessions under s 10B of the LGA.
12. However, the Tribunal disallowed those questions on the basis that it was not conducting an investigation under the LGA and those matters are not relevant to the current administrative reviews under the GIPA Act. Mr Ryan did not ask the witness any further questions and she was excused.

1. The applicant stated that her case is primarily about information that is "commercial in confidence" information of the Eels and information that is commercially sensitive. However, she argued that the class of documents that are "commercial in confidence" are narrower than the respondent asserts and that the respondent is "stretching the definition of commercial in confidence".
2. The applicant argued that the remittal decisions do not attribute any weight to the public interest considerations in favour of disclosure of the disputed information. Therefore, the respondent did not properly apply the public interest test. She also argued that the "gross amounts" that were considered by the respondent are not "commercial in confidence" information of the Eels and should be released to the public.
3. The applicant also argued that the Tribunal should reject the respondent's argument that her "privileged access to confidential documents" excludes her from applying for the release of documents under the GIPA Act.

1. The applicant was called, sworn, and stated that the information contained in Ex 1, Ex 2, Ex 3 and Ex4 is true and correct.

1. I note that in this affidavit, the applicant mainly deposed to issues relating to governance of the respondent that arise under the terms of the LGA. For example, in para 5, she stated that she is concerned that the respondent "is not acting lawfully in adopting a sponsorship with the Parramatta Eels (Eels) which does not comply with Council's adopted sponsorship policy, or tender requirements of the Act". Further, in para 6, she expressed concern that the respondent "has not acted according to the principles of the Act with regard to transparency and accountability..."
2. As this Tribunal is not conducting an investigation under the LGA, I determined that paras 3, 4, 5, 6, 8, 9 (and annexure A), 10 (and annexure B), 11 (and annexure C), 12 and (annexure D), 13, 14, 15, 16 and 17, are not relevant to the current administrative reviews under the GIPA Act. Those paragraphs were excluded.
3. In para 18, the applicant conceded that she has access to the reports and presentations made available to Councillors, but she complained that this information is not available to members of the public "because it has been deemed confidential by the CEO". She also stated that open and transparent government is at the core of the LGA and GIPA Act.
4. Under the heading "Public interest test", the applicant deposed to certain matters that she asserts arise under the terms of the LGA: see paras 20, 21, 22, 23 and 24, which set out a complaint regarding the decision to conduct a closed session of the Council under the LGA. Hower, I determined that these matters are not relevant to the current administrative review.
5. In paras 26 to 33, the applicant deposed to further matters that are relevant to an inquiry under the terms of the LGA and in para 28 she stated:

27. ... Specifically, 11 of the 16 paragraphs contained within the (late) report are considered to be covered by the confidentiality provisions of the Act and Code of Meeting Practice (and in my view, paragraphs 1, 2, 8, 14 and 15 are not).

28. It is my view that paragraphs 1, 2, 3, 4, 8, 9, 11,12,13, 14 and 15 were not confidential as well as the orphan section titled "Financial implications for Council" (between paragraphs 14 and 15).

1. The applicant complained that access to the entire Late Report was refused and that the information contained in a slide presentation to Councillors on 29 November 2023, which she was unable to attend, was not confidential - with the exception of slide 9. Further, she argued that the Briefing Note dated 29 January 2024, highlights a number of documents that were "missing from my GIPA application".
2. In cross-examination, the respondent questioned the applicant regarding the personal factors of her GIPA request and asked whether she authorised a Facebook post on 3 July 2024. The applicant agreed that she authorised it.

1. The respondent noted that the applicant did not challenge Mr Mikhail's evidence regarding the nature of the information that the Eels provided to the respondent. That information is commercial in confidence information of the Eels and the fact that it was provided to the respondent on a confidential basis does not change this and in. The respondent has an obligation to maintain its confidentiality under the partnership agreement. Therefore, this information is outside the scope of the GIPA request.
2. In relation to correspondence, the remaining information that is within scope of the GIPA request is reports, briefing notes and slide decks that was provided to the respondent, which do not contain commercial information of the Eels. Some of this information is already available to the applicant as a Councillor.
3. The evidence before the Tribunal includes the affidavit of John Crawford dated 18 June 2024 (Ex D). He states that this information was located in the Councillor portal, it has been accessed by the applicant, and it is still available in the Councillor portal. This is relevant to the operation of s 59(1)(d) of the GIPA Act and the issue of how the Tribunal should apply it to this matter.
4. In Australian Education Union v Department of Education and Children's Services [2012] HCA 3 at [26], the High Court stated:

The approach to construction

The disposition of this appeal turns upon the correct construction of s 9(4). The process of construction begins with a consideration of the ordinary and grammatical meaning of the words of the provision having regard to their context and legislative purpose. According to the construction adopted by the IRC and the Full Court of the Supreme Court, the power conferred by the subsection extended to the appointment of persons as teachers. On the construction for which the Union contends, the power did not extend to such appointments.

1. Therefore, s 59 of the GIPA Act must be interpreted by reference to its context and the Tribunal should find that that applicant already has the disputed information in her possession. The applicant's proffered construction, namely that the disputed information must be publicly available for s 59(1)(d) to apply, is contrary to the decision of the Appeal Panel in Danis. However, the respondent conceded that Danis expressly considers s 60 of the GIPA Act.
2. If the Tribunal does not accept its argument regarding s 59(1)(d), it should find at the very least that cl 1(g) of the table to s 14(2) of the GIPA Act applies to the disputed information and that disclosure of that information could risk the respondent to an action for breach of the partnership agreement with the Eels.

1. The applicant stated that she is seeking access to commercially sensitive information and that the scope of her GIPA requests includes information regarding the Eels and the respondent's decision to sponsor the Eels, including the respondent's merit assessment of the proposal.
2. The applicant argued that the Tribunal should give a narrow construction to the term "commercial in confidence", as the contract between the respondent and the Eels was necessarily subject to the terms of the GIPA Act and "confidentiality" is therefore also subject to the GIPA Act.
3. The applicant conceded that cl 1(d) of the table to s 14(2) of the GIPA Act applies to the disputed information, but she argued the respondent has filed very little evidence to support its reliance upon it. She asserted that approximately 305 pages of documents have not been subject to an objection by the Eels and while the respondent asserts that some of the documents sought in her GIPA request (ending in 541) are subject to legal professional privilege, the Eels have claimed confidentiality over approximately one quarter of the information produced. She also asserted that the evidence of Ms Jones-Blayney is not of the type discussed in Destination NSW v Taylor.
4. Otherwise, the applicant argued that there is currently no deliberative process before the Council and that disclosure of the disputed information will not impact on the respondent's functions. She also argued that it cannot be the intention of Parliament to exclude her from accessing the disputed information under s 59(1)(d), on the basis that she has view-only access to it via the Councillor Portal. Therefore, the respondent is attempting to misuse its power under the GIPA Act.

1. The Tribunal adjourned the matter for further hearing on 12 December 2024, to conclude hearing the parties' oral submissions and to conduct a confidential hearing under s 107 of the GIPA Act with respect to the documents lodged by the respondent on a confidential basis.
2. The Tribunal stated that following the completion of the confidential hearing on the next occasion, it would reserve its decision.

1. The respondent referred the Tribunal to the decision of Senior Member Montgomery in Meriton Property Services Pty Limited & Ors v UrbanGrowth NSW [2017] NSWCATAD 71. It noted that this decision strictly applies to tenders, but that at paras 82 to 83, the Senior Member stated:

82 In relation to the list of tenderers it is my view that it is likely that the simple fact that an entity's direct market competitor does not know whether the entity took part in the Tender is information of a competitive and commercial value to the entity. This is consistent with the view expressed by President O'Connor in Cianfrano v Director General, Department of Commerce and anor [2005] NSWADT 282 ("Cianfrano"), His Honour observed at paragraph [37] - [38]:

37 SML does not wish to have revealed to the outside world its offers and their foundation. It was involved in a confidential negotiating process. The ultimate outcome is known.

38. There would, I consider, be an adverse effect on the affairs of private bidders as well as on the agencies with which they deal if details of unsuccessful offers and their foundation were to be revealed. It is generally not desirable that a negotiation process be held out later to public view especially if the final outcome is known. ...

1. The respondent argued that this decision is relevant to consideration of the weight to be given to the public interest considerations against disclosure. It also noted that the applicant sought to argue that the information provided to it by the Eels ceased to be the Eels' information after it was provided. However, there is no legal authority that supports this argument.

1. The Tribunal asked the applicant if there were any matters arising from the respondent's reply submissions. In response, Mr Ryan argued that the GIPA Act can override contractual obligations regarding confidentiality, and that the decision in Taylor v Destination NSW is authority for this_._
2. The applicant then sought to tender the respondent's Business Ethics Policy and she told the Tribunal that she "wished to make a statement for the record".
3. The Tribunal queried the relevance of the Business Ethics Policy and why the applicant sought to tender it at this late stage of the proceedings. The applicant replied that the respondent "raised an issue about contract on the last occasion", but she ultimately did not press its tender. As the applicant had already given evidence, the Tribunal did not permit her to "make a statement for the record".
4. The applicant argued that "there is a grey zone of documents" that may refer to the Eels, but which are not "commercial in confidence". She stated that she has seen some of this information and that she "finds it hard to see why it remains confidential". She argued that this information could be redacted "to remove anything that could be considered sensitive or commercial in confidence". She concluded that she wants to be able to use the disputed information and she is currently unable to do so.

1. The Tribunal determined that it was appropriate to conduct a confidential hearing pursuant to s 49(2) of the Civil and Administrative Tribunal Act 2013 (NSW) (the NCAT Act) and s 107 of the GIPA Act. This was conducted in the absence of the applicant.
2. [NOT FOR PUBLICATION]

Bundle (5) - Claim for legal professional privilege

1. [NOT FOR PUBLICATION]
2. [NOT FOR PUBLICATION]

1. [NOT FOR PUBLICATION]
2. [NOT FOR PUBLICATION]
3. [NOT FOR PUBLICATION]
4. [NOT FOR PUBLICATION]
5. [NOT FOR PUBLICATION]
6. [NOT FOR PUBLICATION]
7. [NOT FOR PUBLICATION]
8. [NOT FOR PUBLICATION]
9. [NOT FOR PUBLICATION]
10. [NOT FOR PUBLICATION]
11. [NOT FOR PUBLICATION]
12. [NOT FOR PUBLICATION]
13. [NOT FOR PUBLICATION]

1. [NOT FOR PUBLICATION]
2. [NOT FOR PUBLICATION]
3. [NOT FOR PUBLICATION]
4. [NOT FOR PUBLICATION]

1. The application is brought before the Tribunal under s 63 of the ADR Act, which provides that the Tribunal may review certain decisions of a respondent agency, described as a "reviewable decision". On an application made under s 63 of the ADR Act, the Tribunal undertakes an administrative review of a reviewable decision and determines the correct and preferable decision, having regard to any relevant factual material before it. Section 63 of the ADR Act states:

63. Determination of administrative review by Tribunal

(1) In determining an application for an administrative review under this Act of an administratively reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including the following:

(a) any relevant factual material,

(b) any applicable written or unwritten law.

(2) For this purpose, the Tribunal may exercise all of the functions that are conferred or imposed by any relevant legislation on the administrator who made the decision.

(3) In determining an application for the administrative review of an administratively reviewable decision, the Tribunal may decide:

(a) to affirm the administratively reviewable decision, or

(b) to vary the administratively reviewable decision, or

(c) to set aside the administratively reviewable decision and make a decision in substitution for the administratively reviewable decision it set aside, or

(d) to set aside the administratively reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal.

1. The time at which the Tribunal is to determine the correct and preferable decision the time that it makes its decision: YG and GG v Minister for Community Services [2002] NSWCA 247 at [55].

1. Under s 5, there is a presumption in favour of the disclosure of government information unless there is an overriding public interest against its disclosure.
2. Under s 9(1), a person who makes an access application has a legally enforceable right to be provided with access to the information in accordance with Part 4 (Access applications), unless there is an overriding public interest against disclosure of the information.
3. Section 12 provides that there "is a general public interest in favour of the disclosure of government information" and the NSW Information Commissioner "can issue guidelines about public interest considerations in favour of the disclosure of government information, for the assistance of agencies".
4. Section 13 sets out a "public interest test" which requires a determination of whether "on balance" there are public interest considerations against disclosure which outweigh the public interest considerations against disclosure.
5. In Flack v Commissioner of Police, New South Wales Police [2011] NSWADT 286 (Flack) and Hurst v Wagga Wagga City Council [2011] NSWADT 307 (Hurst), the Tribunal confirmed that the "public interest test" under s 13 requires agencies to start with the presumption in favour of disclosure of information and:

(1) identify the public interest in favour of disclosure (s 12);

(2) identify the public interest against disclosure with reference to the items listed in the table in s 14 of the GIPA Act (s 14 Table); and

(3) determine whether the balance of the public interest lies in favour of, or against, the disclosure of government information.

1. Unless there is a conclusive presumption that there is an overriding public interest against disclosure, the Tribunal must attribute the appropriate weight to each relevant consideration for or against disclosure but the balance is always weighted in favour of disclosure: Taylor v Destination NSW [2017] NSWCATAD 272 at [17]. If the public interest considerations against disclosure outweigh the public interest considerations in favour of disclosure, there is an "overriding public interest against disclosure": s13.
2. Section 14 relevantly provides:

14. Public interest considerations against disclosure

(1) It is to be conclusively presumed that there is an overriding public interest against disclosure of any of the government information described in Schedule 1.

(2) The public interest considerations listed in the Table to this section are the only other considerations that may be taken into account under this Act as public interest considerations against disclosure for the purpose of determining whether there is an overriding public interest against disclosure of government information.

(3) The Information Commissioner can issue guidelines about public interest considerations against the disclosure of government information, for the assistance of agencies, but cannot add to the list of considerations in the Table to this section.

1. Clause 1(d) provides that there is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to prejudice the supply to an agency of confidential information that facilitates the effective exercise of that agency's functions.
2. Clause 1(f) provides that there is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to prejudice the effective exercise by an agency of the agency's functions.
3. Clause 1(g) provides that there is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to found an action against an agency for breach of confidence or otherwise result in the disclosure of information provided to an agency in confidence.
4. Clause 3(a) provides that there is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to reveal an individual's personal information.
5. Clause 4(c) provides that there is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to diminish the competitive commercial value of any information to any person.
6. Clause 4(d) provides that there is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to prejudice any person's legitimate business, commercial, professional or financial interests.
7. Clause 5(1) of Sch 1 provides that it is to be conclusively presumed that there is an overriding public interest against disclosure of information that would be privileged from production in legal proceedings on the ground of client legal privilege (legal professional privilege), unless the person in whose favour the privilege exists has waived the privilege.
8. Section 53 provides for the type and scope of searches for information that come within an access application, and s 53(3) provides that the agency must undertake such reasonable searches as may be necessary to find any of the government information applied for that was held by the agency when the application was received. The searches must be conducted using the most efficient means reasonably available to it, including resources that facilitate the retrieval of information stored electronically. However, it is not required to undertake any search for information that would require an unreasonable and substantial diversion of the agency's resources (s 53(5)). .
9. Section 55 refers to "personal factors" that may be brought into consideration with respect to an agency's determination of whether there is an overriding public interest against disclosure of information. Section 55(1) provides that in determining whether there is an overriding public interest against disclosure of information, an agency is entitled to consider the following "personal factors of the application": (a) the applicant's identity and relationship with any other person; (b) the applicant's motives for making the access application; and (c) any other factors particular to the applicant. These personal factors can also be taken considered as factors in favour of providing the applicant with access to the information (ss (2)), but they can be considered as factors against providing access if (and only to the extent that) those factors are relevant to the agency's consideration of whether the disclosure of the information concerned could reasonably be expected to have any of the effects referred to in cll 2-5 (but not cl l1, 6 or 7) of the Table to s 14 (s 55(3)).
10. Section 73 provides that access is unconditional in the sense that no terms or conditions may be imposed as to the use or the manner in which information is to be disclosed in response to an access application. This has often been described as being disclosure made "to the world".
11. Section 105 places the onus on the agency to establish that its decision is justified. The agency is not limited to defending or justifying its decision on the same grounds as the original decision-maker: Fisher v Goulburn Mulwaree Council [2019] NSWCATAD 34 at [10] (Fisher); Meldru v Wollondilly Shire Council [2017] NSWCATAD 292 at [7] (Meldru).
12. While a very broad value judgment is required to be made, it is not to be made in a vacuum and a judgment must be made having regard to the objects of the Act, the general presumption in favour of disclosure of government information and the principles set out in s 15 of the GIPA Act: Transport for NSW v Searle [2018] NSWCATAP 93 at paragraph [104]. Subsections 15(a) - (d) operate to promote disclosure of information and promotion of the object of the GIPA Act notwithstanding any embarrassment to Government or potential misinterpretation. Only section 15(e) identifies a principle that mitigates the pro-disclosure aim of the GIPA Act.
13. It is only necessary that the considerations in the s 14 Table "could reasonably be expected" to have the effect identified. The onus is on the agency "to demonstrate with respect to each public interest consideration against disclosure upon which it relies, that disclosure could reasonably be expected to have the nominated effect": McKinnon v Secretary, Department of Treasury (2006) 228 CLR 423; [2006] HCA 46 per Hayne J at [61]. This calls for an objective test to be made from the point of a view of a "reasonable" administrator: Hall v Department of Premier and Cabinet (NSW) [2012] NSWADT 46 at [45]. This is also to be determined as a question of fact based on real and substantial grounds and not just a "mere risk or chance": Flack (at [41]) and Leech v Sydney Water Corporation [2010] NSWADT 298 at [25] (Leech).

1. I am satisfied that the remittal decisions dated 6 September 2024 are THE reviewable decisions for the purposes of s 80 of the GIPA Act and are the subject of the current administrative review under s 100 of the GIPA Act.

1. I am satisfied that the issues for determination are as follows:

(1) Is there a conclusive presumption that there is an overriding public interest against disclosure of some of the disputed information because it is subject to legal professional privilege?

(2) Does the disputed information contain commercial-in-confidence, or commercial information of the Eels, such that it is outside scope.

(3) Is there an overriding public interest against disclosure of some of the disputed information (which is not commercial in confidence information of the Eels) on the grounds that disclosure could reasonably be expected to:

(a) Prejudice the respondent's ability to exercise its functions; and/or

(b) Diminish the competitive commercial value of the information which is outside the scope of the current GIPA requests; and/or

(c) Prejudice the Eels' legitimate business, commercial, professional or financial interests.

(4) As the applicant has restricted access to the disputed information as a Councillor of the respondent, does s 49(1)(d) prevent her from obtaining unrestricted access under the GIPA Act?

(1) Is there a conclusive presumption that there is an overriding public interest against disclosure of some of the disputed information because it is subject to legal professional privilege?

1. The privilege claim attaches to the disputed documents contained in Bundle (5) of the respondent's confidential documents. These comprise emails between the respondent and its solicitors and I am satisfied that they are protected by legal professional privilege.
2. A copy of the proposed commercial partnership agreement between the Eels and the respondent was also attached to these emails. In Commissioner of Australian Federal Police v Propend Finance Ltd (1997) 188 CLR 501 at 507-508, the High Court held that privilege may attach to a copy of a non-privileged document, where the copy was made for the dominant purpose of obtaining legal advice.
3. I am satisfied that the respondent has not waived the claim for privilege.
4. Accordingly, I am satisfied that there is a conclusive presumption that there is an overriding public interest against disclosure of the information contained in Bundle 5 pursuant to cl 1 of sch 5 of the GIPA Act.

(2) Does the disputed information contain commercial-in-confidence, or commercial information of the Eels, such that it is outside scope

1. The documents in Bundles (1) and (2) of the respondent's confidential documents are relevant to this issue.
2. The uncontested evidence before me indicates that the Eels provided information to the respondent on a confidential basis, to enable the respondent to consider the sponsorship proposal and/or proposed Strategic Partnership with the Eels.
3. In Johnson v Wollondilly Shire Council [2022] NSWCATAD 182 (Johnson), Senior Member Montgomery stated, in relation to cl 1(g) of the table to s 14(2):

107. I agree that the release of the information provided to the Respondent by Sydney Water was provided in confidence. It is governed by the deed of confidentiality and it may reasonably be expected to found an action against the Respondent and possibly against Sydney Water for breach of confidence or otherwise result in the disclosure of information provided to an agency in confidence. In my view, this public interest consideration against disclosure applies to each of the documents that has been withheld in full and to the withheld information that has been redacted from the remaining documents. In my view this consideration should be given significant weight.

108. On balance, I am satisfied that the public interest against disclosure in clause 1(g) of the Table to section 14 outweighs those considerations in favour of disclosure to that redacted information.

1. Further, in Johnson, the Senior Member stated_:_

88. I am satisfied that the release of the information could mean that those that deal with the Respondent will be less likely to provide confidential information knowing that the confidentiality of such information would not be maintained. This would lead to hesitation or unwillingness to deal openly and frankly with the Respondent. This could prejudice the future supply of confidential information not only for this development but also future development and prejudice the effective exercise of the functions of the Council and Sydney Water.

89. In my view, the public interest considerations against disclosure in clause 4(c) and clause 4(d) should be given significant weight. On balance, I am satisfied that the public interest against disclosure outweighs those considerations in favour of disclosure.

1. I accept the respondent's argument that the partnership agreement between the Eels and the respondent requires it to maintain confidentiality over the information provided to it by the Eels.
2. I am satisfied that the respondent acted upon its obligation to maintain confidentiality of the disputed information by ensuring that the Councillors were briefed during confidential briefing sessions and that the proposals were considered in closed sessions of the Council pursuant to the terms of the LGA.
3. To the extent that the applicant appears to argue that the disputed information can be considered confidential for the purposes of the LGA, but that it is not confidential for the purposes of the GIPA Act, I reject that argument. There is simply no legal support for it.
4. In Male v Kempsey Shire Council [2022] NSWCATAD 39, the Tribunal stated:

272. ...a reasonable person would assume that tender responses were documents that were provided to the Council "in confidence". I am of the view that tenderers, relying upon ... have a right to expect that their information will be kept confidential unless there is an overriding public interest in disclosure.

273. In Meriton at [112], the Tribunal found that where information was provided in reliance on representations that it would be treated as confidential, release of the information could reasonably found an action for breach of an "obligation of confidence". I consider that the Council's expectation that disclosure of the information could found an action against it for breach of confidence is reasonably held, and is not irrational, absurd or ridiculous in line with the reasoning in Cockroft and Solomon...

1. Further, in Moran v Shellharbour City Council [2022] NSWCATAD 112, the Tribunal stated, relevantly:

125. When considering clause 4(d), the Tribunal must be satisfied that there are reasonable grounds for an expectation that the disclosure of the information could reasonably be expected to prejudice legitimate business, commercial, professional or financial interests: see Meriton Property Services Pty Limited & Ors v Urban Growth at [148].

126.In Hurst v Wagga Wagga City Council [2011] NSWADT 307 the Tribunal found that 'prejudice' meant 'to cause detriment or disadvantage'.

127. In Shenhua Watermark Co Pty Limited v Department of Planning and Environment [2019] NSWCATAD 119, the Tribunal found when assessing the public interest consideration at [45]:

The public interest against disclosure in cl 4(d) is more broadly framed than that in cl 4(c) as it refers to legitimate business, commercial, professional or financial interests. The important feature of the clause is whether a disclosure of that information could reasonably be expected to prejudice those interests.

1. In Tallawoladah Pty Ltd v Department of Planning, Industry and Environment [2021] NSWCATAD 248 (Tallawoladah), the Tribunal determined that the words "found an action for breach of confidence" should be interpreted as referring to a legal action for breach of an obligation of confidence.
2. In Lock the Gate Alliance v Department of Planning and Environment and Anor [2019] NSWCATAD 6, SM Ransome stated at paragraph [139]:

In considering the first limb of cl (1)(g) the Tribunal has referred to Re B and Brisbane North Regional Health Authority [1994] QICmr 1; (1994) 1 QAR 279 where it was held that the words "found an action of breach of confidence" in the Queensland freedom of information legislation should be taken to refer to a legal action brought in respect of an alleged obligation of confidence in which reliance was placed on one or more of the following causes of action:

1. a cause of action for breach of an obligation of confidence;

2. a cause of action for breach of a contractual obligation of confidence;

3. a cause of action for breach of a fiduciary duty of confidence and where account is taken of the recognised defences to an action for breach of confidence.

1. Further, in Public Service Association and Professional Officers Association, Amalgamated Union of NSW v Premier's Department [2002] NSWADT 277 at [53], the Tribunal identified five matters that must be established for a hypothetical equitable action for breach of confidence:

(1) the information must be capable of being specifically identifiable as information which is secret rather than generally available;

(2) the subject matter of the obligation of confidence must not be trivial or useless or generally known;

(3) the information must have been communicated in circumstances such as to fix the recipient with an equitable obligation not to use the information in an unauthorised way;

(4) it must be established that disclosure of the information would constitute an unauthorised disclosure; and

(5) it must be established that the giver of the information would suffer a detriment, not necessarily pecuniary, such as loss of privacy or embarrassment.

1. I am satisfied that all of the "figures" are "commercial in confidence" or commercial information of the Eels and are outside scope.
2. I am satisfied that the redacted information in the Stakeholder column these documents indicates that third party consultation is required and they are also outside scope.
3. The PowerPoint slide deck from the Eels' presentation to the respondent, which is marked "commercial in confidence". There are also emails from Mr Mikhail to the respondent, which are outside scope.
4. The documents includes details of the proposed partnership offer, and certain options that the respondent did not take up. I am satisfied that this information is commercially sensitive and/or commercial in confidence information of the Eels and is outside scope.
5. In any event, the PowerPoint slide deck was shown to Councillors as part of a confidential briefing session, during a session of Council that was closed under the provisions of the LGA. This is set out in the evidence of Ms Jones-Blayney, which I accept. The same applies to the Briefing Note to Councillors and the Late Report.
6. The information that has been redacted on page 27 refers to other sports bodies with whom the respondent has commenced partnership negotiations, which would require third party consultation. It is therefore outside scope, but if this were within scope, I am satisfied that it is such that it could reasonably be expected to affect the other parties' business interests etc.
7. The documents includes information regarding the Parramatta Lanes event. The respondent conceded that this information is not confidential and that it should be released to the applicant.
8. I am satisfied that the redacted information in the balance of the documents should not be released to the applicant, as it is outside scope because it is either commercially sensitive information that was provided to the respondent on a confidential basis; or commercial in confidence information of the Eels; or information that requires third party consultation.

1. This contains a replication of the PowerPoint slide deck and includes working figures and negotiations that were conducted between the Eels and the respondent. I am satisfied that this information is commercial in confidence information of the Eels and is outside scope.
2. Pages 41 to 48 comprise a copy of the draft Late Report to Councillors, and the information in the right hand column is clearly commercial in confidence information of the Eels, as it contains working figures for consideration by Councillors. It is therefore outside scope.
3. Page 57 appears to form the crux of the current GIPA dispute, as it is a spreadsheet that summarises the proposals that the Eels made to the respondent. I am satisfied that this information is commercial in confidence information of the Eels and that it is outside scope.
4. However, page 86 is headed "Benefits provided by City of Parramatta". In my view, this is not commercial in confidence information of the Eels and it should be released to the applicant.

(3) Is there an overriding public interest against disclosure of some of the disputed information (which is not commercial in confidence information of the Eels)?

1. Bundles (3) and (4) of the respondent's confidential documents are relevant to this issue. In determining this issue, I have applied the public interest test in the manner required by the decision in Flack.

Public interest considerations in favour of disclosure

1. I agree with and adopt each of the public interest considerations in favour of disclosure that were identified by the respondent. I also adopt the applicant's personal factors of the GIPA requests.
2. In my view, these considerations should each be given significant weight.

Public interest considerations against disclosure

1. I agree with and adopt the public interest considerations against disclosure that have been identified by the respondent.
2. In my view, these factors should each be given substantial weight. This particularly applies to the personal information of third parties in Bundle (3).
3. I am satisfied that there is an overriding public interest against disclosure of that information under cl 3(a) of the table to s 14.

1. This contains correspondence from the Eels to the respondent, which is outside scope.

1. I make the following comments and findings in relation to these documents:

(1) Page 3 is outside scope.

(2) Pages 4 and 5 - the information marked in red is outside scope. Page 5 also contains an email from Mr Mikhail which is outside scope.

(3) Page 6 - This email is not from SK and it is outside scope.

(4) Page 7 - This is an email from Mr Mikhail and it is outside scope.

(5) Page 10 - This is an email from SK to other officers of the respondent. It should be released to the applicant.

(6) Page 15 - The work mobile number of SK should be released;

(7) Page 17 - The work mobile number of the author should be released;

(8) Pages 18 to 20 - The work mobile number of SK should be released;

(9) Page 23 - The work mobile of the author should be released;

(10) The email from SK at the top of page 28 should be released, but the remainder of the page is outside scope.

(11) The email at the top of page 29 should be released, but the remainder of the page is outside scope.

(12) On page 30, the names and email addresses of Eels' staff should be redacted under cl 3(a) of the table to s 14.

(13) Pages 34 to 37 - The redacted figures align with the Briefing Note to Councillors. The information marked in red is commercial in confidence information of the Eels and is outside scope.

(14) Page 30 - The names and email addresses of Eels' staff should be redacted under cl 3(a) of the table to s 14.

(15) Page 46 - This is an email from SK to other staff of the respondent. It should be released to the applicant.

(16) Page 47 - This is an internal email from SK regarding the forthcoming Councillor briefing session, and it discusses the offer placed by the Eels. That information is commercial in confidence information of the Eels and is outside scope.

(17) Pages 48 and 49 - The author's work phone number should be released.

(18) Pages 51, 52, 53 and 54 - The redacted information is commercial in confidence information of the Eels and it is outside scope. The further email that commences at the bottom of page 54 is from the Eels and is outside scope.

(19) Pages 55 and 56 comprise emails from the Eels, which are outside scope.

(20) Page 57 contains a single redaction, which is commercial in confidence information of the Eels and is outside scope.

(21) Pages 58 and 59 - This is an email from the Eels and it is outside scope.

(22) Pages 61 and 63 - There is a single redaction and I am satisfied that this information is commercial in confidence information of the Eels and is outside scope.

(23) Page 61 - The work phone number of the author should be released.

(24) Pages 66 and 67 refer to a corporate box of another entity, which requires third party consultation. It is therefore outside scope.

(25) Pages 70 and 72 are emails from the Eels, which are outside scope.

(26) Page 71 - I am satisfied that the redacted information is commercial in confidence information of the Eels and is outside scope.

(27) Page 73 - This is an email from SK to the Eels and the names and email addresses of the Eels' staff have been properly redacted under cl 3(a) of the table to s 14.

(28) Page 76 - The email at the top of the page is from the Eels and is outside scope. The email following this is from SK to the Eels and should be released, with redaction of the names and email addresses of the Eels' staff.

(29) The email commencing at the bottom of pages 77 and continuing onto page 78 are from the Eels and are outside scope.

(30) On page 78, there is an email from SK, which discusses a sponsorship option that was not taken up by the respondent. I am satisfied that this is commercial in confidence information of the Eels and is outside scope.

(31) Page 79 includes an email from the Eels, which is outside scope.

(32) Page 80 includes an email from SK, which discusses, inter alia, how the Eels cost their jersey sponsorship. I am satisfied that this is commercial in confidence information of the Eels and is outside scope.

(33) Page 82 includes a detailed breakdown of how the Eels price their jersey assets. I am satisfied that this is commercial in confidence information of the Eels and is outside scope.

(34) Pages 85, 87, 88 and 90 to 91 contain limited redactions, which are commercial in confidence information of the Eels and outside scope.

(35) Similarly, the emails at pp 90 and 91 discuss the Eels' brand and how this is priced and valued by the Eels. This is commercial in confidence information of the Eels and is outside scope.

(36) On pages 95 and 97, the work phone number of the author should be released.

(37) Page 98 - This email refers to the corporate box of another entity and requires third party consultation. It is therefore outside scope.

(38) Page 100 - The redacted information regarding a corporate box option is commercial in confidence information of the Eels and is outside scope. However, the work phone number of the author should be released.

(39) Page 101 - The redacted information is the first name of an officer of the Eels and a discussion of part of the sponsorship proposal that the respondent did not take up. The name of the Eels officer has been properly redacted under cl 3(a) of the table to s 14. The latter redaction is commercial in confidence information of the Eels and is outside scope.

(40) The email on page 102 should be released, with redaction of the names and email addresses of the Eels' officers.

(41) Page 103 comprises an email from the Eels and it is therefore outside scope.

(42) On page 106, the redacted information relates to how the Eels price their jersey assets. This is commercial in confidence information of the Eels and is outside scope.

(43) Pages 108 and 109 are duplicates of a document containing the offer that the Eels made to the respondent. This is clearly commercial in confidence information of the Eels and is outside scope.

(4) As the applicant has restricted access to the disputed information as a Councillor of the respondent, does s 49(1)(d) prevent her from obtaining unrestricted access under the GIPA Act?

1. I reject the respondent's argument that s 59(1)(d) of the GIPA Act operates to preclude the applicant, who has been given restricted access to information sought in the GIPA request, from obtaining access to that information under the GIPA Act.
2. I note that the case law relied upon by the respondent in relation to this argument expressly relates to s 60 of the GIPA Act. In my view, it was open to Parliament to specifically provide for this proffered exclusion, but it did not do so, and there is no sound basis for interpreting the provision in the manner suggested by the respondent.
3. However, I reject the applicant's argument that this is evidence of the respondent misusing its power under the GIPA Act.

Should the Tribunal refer any matter to the Information Commissioner?

1. In my decision dated 6 September 2024, I considered an application by the applicant to rely upon an affidavit of Mr Segert, in support of an application under s 111 of the GIPA Act.
2. Section 111 provides:

Referral of systemic issues to Information Commissioner

NCAT may refer any matter to the Information Commissioner that NCAT considers is indicative of a systemic issue in relation to the determination of access applications by a particular agency or by agencies generally.

1. I determined that I was not satisfied that Mr Segert's affidavit contained evidence of systemic issues within the respondent. I also stated:

35. To the extent that the applicant seeks to rely upon the affidavit in support of her argument regarding the CEO's decision to appoint herself as the primary decision maker, I note that this decision is not a reviewable decision under the GIPA Act...

40. I note that the power to decide whether matters are discussed in open or closed sessions of the Council arises under the LGA and that the CEO's decision to discuss the matter regarding which the applicant is aggrieved, is neither a reviewable decision under ss 80 or 100 of the GIPA Act nor a matter with respect to which this Tribunal as jurisdiction.

1. However, a determination under s 111 of the GIPA Act can only be made at the completion of an administrative review and as the review has now been completed, I must make a determination.
2. I am satisfied that the decision made by the respondent's CEO to be the primary decision maker in relation to the current GIPA requests is not evidence of a systemic issue in relation to the determination of access applications. I therefore decline to refer the matter to the Information Commissioner.

Was the applicant denied procedural fairness by the respondent?

1. I am not satisfied that the applicant was denied procedural fairness by the respondent for the following reasons:

(1) She lodged GIPA requests and she was given opportunities, which she accepted and exercised, to refine the scope before a decision was made at first instance.

(2) The respondent made a decision on each GIPA request, which the applicant disagreed with, and she was afforded rights of internal and external review;

(3) She exercised her right of external review by this Tribunal.

(4) In the current proceedings, after the first hearing, she was afforded a further opportunity to refine the scope of the GIPA requests, which she exercised, and decisions were made by the respondent on remittal.

(5) The remittal decisions are the subject of the current administrative review.

(1) The documents in Bundle (5) are protected by legal professional privilege;

(2) The disputed information in Bundle (3) is outside scope.

(3) The reviewable decisions are varied as follows:

(a) In Bundle (1), information to the Parramatta Lanes event is to be released to the applicant.

(b) In Bundle (2), p 86 (headed "Benefits provided by City of Parramatta") is to be released to the applicant.

(c) With respect to Bundle (4):

(i) Page 10 (in full) and the work phone numbers on pages 15. 17, 18, 19, 20, 23, 48, 49, 61, 95 and 97 are to be released to the applicant.

(ii) The emails at the top of p 28, the top of p 29, the second email on p 76 and the email on p 102 are to be released to the applicant, with redaction of the names and email addresses of Eels' officer.

(4) Otherwise, the reviewable decisions are affirmed.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.